Gilmour

The plaintiff as executor commenced an action against the defendant to obtain possession of the funds alleged to be the property of Sarah Gilmour, deceased. The defendant answered and the trial was had before the court sitting without a jury. The court made findings in favor of the plaintiff and from a judgment entered thereon the defendant has appealed. The defendant claims to be the absolute owner of the funds by reason of the fact that, as he claims, on the twenty-fifth day of April, 1923, the decedent joined him in opening a joint savings account and that as the survivor he is entitled to the funds in dispute. In reply the plaintiff asserts that prior to the opening of said account, to wit, on the twenty-second day of May, 1920, the decedent was adjudged an incompetent person and this plaintiff was appointed guardian of her estate, and that thereupon he qualified and thereafter continued to act and was so acting at the time of the death of the decedent. If the proceeding so appointing him guardian were regular and free from legal objection the contention of the plaintiff must be sustained. (O’Brien v. United Bank & Trust Co., 100 Cal. App. 325 [ 279 Pac. 1048 ].) However, the…